Opinion
Civil No. 98-2654 (JEI).
September 28, 1998.
RAFAEL FELICIANO CASADO, FCI Fairton, Fairton, N.J., Petitionerpro se.
FAITH S. HOCHBERG, United States Attorney, By: Louis J. Bizzarri, Assistant U.S. Attorney, Camden, N.J. Counsel for Respondent.
OPINION DENYING PETITION FOR HABEAS CORPUS
I.
Petitioner Rafael Feliciano Casado ("Casado) is currently incarcerated at FCI Fairton. He was sentenced on December 29, 1987, in the United States District Court of Puerto Rico for having been a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), having received a firearm stolen from the United States government, 18 U.S.C. § 641, and escape from federal custody, 18 U.S.C. § 751(a). He received consecutive terms of ten years, five years and five years, respectively, for each of the three convictions. Casado was given credit against this aggregate 20 year sentence for the periods from August 16, 1986, the date of his original federal arrest, through September 17, 1986, the date of his escape, and March 17, 1987, the date of his recapture, through December 29, 1997, the date on which he was sentenced.
At the time of the offense, August 16, 1986, this crime was codified at 18 U.S.C.A. § 922(h)(1). One hundred and eighty days after May 19, 1986, § 102(6)(D) of Pub.L. 99-308 amended § 922 and § 922(h)(1) became § 922(g)(1). Section 110(c) of Pub.L. 99-308.
Following his sentencing in federal court, petitioner was returned to the custody of Puerto Rico to finish serving a sentence resulting from his violation of probation stemming from a 1980 superior court conviction for voluntary manslaughter.
On August 9, 1988, Casado pled guilty in the Superior Court of Puerto Rico to transporting a loaded weapon, P.R. Laws Ann. tit. 25, § 418, receiving and transporting unlawfully appropriated property, P.R. Laws Ann. tit. 33, § 4274, and two counts of controlled substances violation, P.R. Laws Ann. tit. 24, § 2401. The weapons charge and the unlawful appropriation charge arose from the same facts which underlay the similar federal convictions. Casado was sentenced to six months on the unlawful appropriation charge and three years on each of the other three charges. However, the trial judge ordered that all four sentences were to run concurrently with each other and with the federal sentence which had previously been imposed.
Casado continued in commonwealth custody and completed serving his Puerto Rican sentences on January 2, 1991, at which time he was remanded to federal custody to complete the service of his 20 year federal sentence.
Presently before this Court is Casado's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Casado claims that i) his state and federal convictions relating to the illegal appropriation and possession of a firearm violate the Double Jeopardy clause of the Fifth Amendment to the United States Constitution; ii) the District Court improperly instructed the jury; and iii) although the state court judge ordered that Casado's federal and state sentences run concurrently, the Bureau of Prisons did not credit him for any time served while in the custody of the Commonwealth of Puerto Rico.
Casado's first two claims will be dismissed since they are not cognizable under § 2241, but should have been timely brought under 28 U.S.C. § 2255 in the District of Puerto Rico where he was sentenced. His final claim will also be dismissed because 18 U.S.C. § 3568 does not allow credit against a federal sentence for time spent in state custody on charges which are not substantially identical. Although ther e is some similarity between the gun related offenses, there are elements of the federal charges which are sufficiently different from the Puerto Rican charges to preclude the credit sought by petitioner.
II. A.
Petitioner's double jeopardy argument and his claim of faulty jury instructions attack the validity of his conviction and, thus, the legality of his sentence. Claims attacking the legality of a sentence are properly brought under 28 U.S.C. § 2255. See Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977). See also Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997). Generally, a petition for a writ of habeas corpus under § 2241 is appropriate only "where petitioner challenges the effects of events `subsequent' to his sentence."Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir. 1976), cert. denied, 429 U.S. 851 (1976). Issues relating to parole, computation of credits against a sentence which are administered by prison officials, and prison disciplinary actions are examples of matters which might properly be heard under § 2241. Liebman Hertz, Federal Habeas Corpus Practice and Procedure (2d Ed.), vol. 2, pp. 1184-1190.
However, petitioner's claims of double jeopardy and improper jury instructions should have been brought pursuant to 28 U.S.C. § 2255 before the District Court in Puerto Rico which sentenced him. Section 2255 provides that:
An application for a writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
The record does not indicate that petitioner has applied for relief in Puerto Rico or that the remedy pursuant to 28 U.S.C. § 2255 is "inadequate or ineffective to test the legality of his detention." New Jersey is not the proper venue, and § 2241 is not the proper statute for raising either the double jeopardy or jury instruction issue.
B.
In some instances, where a petitioner improperly brings his petition pursuant to 28 U.S.C. § 2241 instead of § 2255, it is appropriate for the court to transfer the case to the sentencing court for decision under § 2255. Here, however, if we transferred petitioner's case to the sentencing court, that court would have to find that petitioner's claim is barred by § 2255's one-year statute of limitations. 28 U.S.C. § 2255, as amended by The Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1218, which became effective April 24, 1996, provides, in relevant part:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —
(1) the date on which the judgment of conviction becomes final . . .
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Federal courts have determined that prisoners should be given a "reasonable time" after the AEDPA became effective to file petitions which would otherwise be barred by the statute. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir. 1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev'd on other grounds, ___ U.S. ___, 117 S.Ct. 2059 (1997). A "reasonable time" has been defined by the courts as one year from the date that 28 U.S.C. § 2255 was amended by the AEDPA, to include the limitations period. See Burns, 134 F.3d at 111; Simmonds, 111 F.3d at 746; Lindh, 96 F.3d at 866. Therefore, because the AEDPA became effective on April 24, 1996, petitioner would have had until April 23, 1997 to file his § 2255 motion. Here, petitioner did not file his petition until June 10, 1998. Petitioner has waited more than ten years to raise issues which were apparent at or soon after he was sentenced. Because it would not be in the interest of justice to transfer petitioner's time-barred claims, we will exercise our discretion under 1406(a) and decline to transfer the case.
28 U.S.C. § 1406(a) provides: "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or of it be in the interest of justice, transfer such case to any district or division in which it could have been brought."
III.
Petitioner contends that the commonwealth judge ordered that his August 9, 1988, commonwealth sentence run concurrently with the December 29, 1987, federal sentence, but that the Bureau of Prisons did not credit him for the time served in commonwealth prison on the gun related charges. Essentially, petitioner relies on two grounds for relief. First, he argues that the intention of the superior court judge that the commonwealth sentence run concurrently with the federal sentence must be honored by federal authorities. Alternatively, he argues that the Bureau of Prisons was required to give him credit for state custody, because the state and federal convictions are sufficiently connected, as defined by 18 U.S.C. § 3568.
A.
The record clearly indicates that the state court intended that Casado's "sentence shall be served concurrently . . . with the sentences imposed in the Federal Court." It is also clear that the prisoner served his Puerto Rican sentence in a commonwealth prison before being turned over to federal custody. It is well settled law that a state court may choose to impose a state sentence as concurrent with an existing federal sentence. This follows from the obvious proposition that a sovereign state exercises full control over their own sentences. However, as a necessary corollary, the validity and length of a federal sentence is not legally affected by the intentions of a state court. See Pinaud v. James, 851 F.2d 27, 31 (2nd Cir. 1988); Vaughn v. United States, 548 F.2d 631, 632-33 (6th Cir. 1977); Opela v. United States, 415 F.2d 231, 232 (5th Cir. 1969). The effect of these principles is that a state must turn a prisoner over to the federal government before the state sentence is completely served if they wish to impose a concurrent sentence. Once the federal sentence commences a state is free to give a prisoner credit against any unserved portion of a state sentence. But the state is powerless to force the federal authorities to credit previously served state time against the remaining unserved part of a federal sentence.
This time of commencement of a federal sentence is controlled by 18 U.S.C. § 3568 which provides:
Although section 3568 has been repealed, it governs credit for time custody for all sentences imposed for offenses committed before November 1, 1987. Because petitioner's federal offense took place prior to November 1, 1987, 3568 is controlling in the instant case. See Sentencing Reform Act of 1984, Pub.L. No. 98-473, § 235(a)(1), 98 Stat. 1987, 2031, amended by Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, § 4, 99 Stat. 1728, 1728; Sentencing Act of 1987, Pub.L. No. 100-182, § 2(a), 101 Stat. 1266, 1266.
The sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence.
The case law interpreting § 3568 has clearly established that a federal sentence cannot begin to run until a prisoner has been received by the federal authorities. See Kincade v. United States, 559 F.2d 906, 908 (3d Cir. 1977) (finding that § 3568 in effect provides that a federal sentence shall begin to run only after prisoner is released from state custody and received at place of federal detention); Del Guzzi v. United States, 980 F.2d 1269 (9th Cir. 1991) (finding that § 3568 mandates that federal authorities need only accept prisoners upon completion of their state sentence and need not credit prisoners with time spent in state custody); Pinaud v. James, 851 F.2d 27, 31 (2nd Cir. 1988) (finding that § 3568 precludes calculation of time served on a federal sentence from any date other than on which defendant was delivered to federal prison officials); United States v. Segal, 549 F.2d 1293, 1301 (9th Cir. 1977) (finding that district judge has no authority to impose a federal sentence concurrent with a state sentence because a federal term cannot begin until a prisoner is received by federal authorities under 3568).
Accordingly, petitioner's federal sentence did not begin to run until January 2, 1991, when he was released from state custody and received at the place of federal detention. Had the commonwealth turned petitioner over to the federal authorities, instead of incarcerating him in a commonwealth prison, it is clear that the state sentence would have run concurrently with the federal sentence. Since this is not the case, this Court is powerless to effectuate the desire of the Puerto Rican court.
As noted above petitioner was given credit against his federal sentence for time in federal custody subsequent in 1986 and 1987. See supra p. 2.
B.
Section 3568 provides that "[t]he Attorney General shall give any such person credit toward service of his sentence for any days spent in custody "in connection" with the offense or acts for which sentence was imposed" (emphasis added). Petitioner contends that his state and federal convictions are sufficiently similar to one another such that the federal authorities are required to credit him for the time served in state prison. The determination of whether petitioner is entitled to any relief turns upon whether the time he spent in state custody is "in connection" with the offense or acts for which his federal sentence was imposed. This requires that this Court examine petitioner's federal and state convictions to determine if they are sufficiently connected.
Casado's December 29, 1987, federal conviction for violating 18 U.S.C. § 641 and 18 U.S.C. § 922(g)(1) were based on facts related to two of the four counts on which the August 9, 1988, Puerto Rican conviction was based. Petitioner argues that because the same weapon established both convictions, the federal sentence was actually based upon the same offense or act as the state sentence and thus his federal sentence should be credited for the time served in state custody. The standard for finding that the state and federal sentence resulted from the "same charges" is a strict one. See Emig v. Bell, 456 F. Supp. 24, 26 (D. Ct. 1978).
Petitioner correctly cites Fontaine v. United States, 434 F.2d 1310, 1311 (5th Cir. 1970) for the proposition that credit is given on a federal sentence for time spent in state custody if the state custody was based upon the same offenses or acts for which the federal sentence was imposed. However, Fontaine held that a petitioner who had been convicted of transporting a stolen automobile in interstate commerce was not entitled to credit for time spent in state custody on a conviction of theft of such automobile. Id. at 1310.
Fontaine is analogous to the instant case because the petitioner inFontaine argued that his federal sentence should be credited with the three years he had served on the Louisiana state conviction for theft of the same auto which he transported in interstate commerce, because the separate convictions were based on the same acts. The Fifth Circuit distinguished the federal and state offenses:
It is true that the same automobile was involved in both offenses, but it is with this incidental fact the sameness ends. The Louisiana offense of auto theft was based on the defendant's admitted actions in taking possession of a car that was not his. The State crime was complete at the moment of wrongful appropriation, even if the vehicle moved one-half block. On the other hand, the federal offense of knowingly transporting a stolen vehicle across state lines did not occur until the automobile was taken across a state line and it was in no way dependent upon the theft of the automobile by the defendant. Id. at 1311.
The state charge was therefore not sufficiently connected with the federal charge for purposes of crediting the state time on the prisoner's sentence under § 3568. See also Emig v. Bell, 456 F. Supp. 24 (D. Ct. 1978) (finding that federal conviction for making false statements on a loan application and state conviction for check fraud do not constitute "same charges" under § 3568); Watson v. Henderson, 350 F. Supp. 240 (N.D.Ga. 1972) (finding that prisoner was not entitled to credit on subsequent federal sentence for time served in state sentence because forgery conviction for which prisoner was in state custody was a different crime than federal conviction for interstate transportation of forged securities).
That the same gun established Casado's state and federal convictions does not render them sufficiently connected for the purpose of crediting his federal sentence under § 3568. The acts necessary to constitute the federal offenses required theft of federal property (§ 641), that Casado have a prior felony conviction, (§ 922(g)(1)) and that the weapon in question had been shipped in interstate commerce (§ 922(g)(1)). None of these three elements was required by either of the two Puerto Rican convictions which relate to the same gun. See P.R. Laws Ann. tit. 25, § 418; and P.R. Laws Ann. tit. 33, § 4274.
Accordingly, this Court finds that petitioner's state and federal offenses are not sufficiently connected pursuant to § 3568 to require credit towards his federal sentence for his time served in state custody. The Bureau of Prisons properly computed petitioner's sentence to begin on January 2, 1991, the day he was remanded to federal custody with appropriate credit for the time he spent in custody from August 16, 1986 through September 17, 1986, and March 17, 1987, through December 29, 1987.
We also note that petitioner's three year term included not only the two gun charges but also convictions for two drug crimes. He received three year sentences on each of the drug convictions, but since all four Puerto Rican sentences were to be served concurrently, it is impossible to allocate any particular part of that sentence solely to the gun related convictions.
IV.
For the foregoing reasons, we will deny petitioner's petition for a writ of habeas corpus. An appropriate order will issue on even date herewith.